Michigan Court of Appeals Overturns Building Height Measurement Ruling


By Beth Milligan | October 13, 2022

The Michigan Court of Appeals on Thursday reversed part of a Thirteenth Circuit Court ruling regarding how the height of buildings is measured in Traverse City.

The Michigan Court of Appeals overturned a ruling by Judge Thomas Power that determined that all parts of a building must be less than 60 feet or otherwise be subject to public vote under the city’s charter. town of Traverse City. Judges said Power ‘erred’ in siding with an argument by the group Save Our Downtown that the charter amendment overruled the city’s zoning ordinance, which measures level height from the ground to the roof terrace and excludes certain mechanical and architectural features (such as elevator shafts and clock towers). Save Our Downtown argued – and Power agreed – that the passage of Proposition 3 in 2016 changed the way building heights were measured in the city, requiring all features to be less than 60 feet. The Michigan Court of Appeals rejected this decisionclaiming that it is “undisputed that the amendment does not expressly address how to measure the height of a building” and that if Save Our Downtown wishes to change the city’s zoning ordinance regarding how the height of buildings is measured, she must follow the proper legal process in Michigan for changing zoning rules.

However, the judges also found that Save Our Downtown had standing to sue – on the grounds of protecting voters’ rights – and that Power did not err in granting the group a summary judgment in the case. ‘affair. That’s because even as part of the city’s building height measurement system, Innovo – the developer of a building project on Hall Street that was at the center of the lawsuit – had insulation material on the roof. -terrace that exceeded 60 feet. “There was no doubt that the insulating material was more than 60 feet above the average slope,” the judges wrote. Because Innovo was unable to prove otherwise, there was no factual dispute that the building exceeded 60 feet and Power was within its rights to grant summary disposal, the judges found.

In its finding, the Michigan Court of Appeals said it upheld Power’s award of summary disposition to Save Our Downtown “on the basis that there was no genuine material face issue as to whether whether the height of the proposed building would exceed the Charter Amendment height limit. We reverse, however, the trial court‘s granting of declaratory relief and injunctive relief, including its interpretation of the amendment of the charter as providing for a method of measuring buildings different from that provided for in the zoning ordinance.” With the judges upholding Power’s decision in part and reversing it in part, no costs will be awarded to the City of Traverse City and Innovo – which had appealed the decision – or to Save Our Downtown, which had defended it .


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